The Obama DoJ's decision to drop espionage-lite charges leveled by the Bush administration against Steve Rosen and Keith Weissman--two former AIPAC officials who were accused of spreading state secrets--is drawing applause from Yglesias, Spencer, and bloggers at the CJR and Washington Monthly. They're arguing that, by prosecuting private individuals for simply communicating classified information, the government would endanger a wide range of everyday practices that journalists rely upon to report about national security.
It's an argument that Eli Lake first developed in this 2005 piece for TNR. An excerpt:
But, if it's illegal for Rosen and Weissman to seek and receive "classified information," then many investigative journalists are also criminals--not to mention former government officials who write for scholarly journals or the scores of men and women who petition the federal government on defense and foreign policy. In fact, the leaking of classified information is routine in Washington, where such data is traded as a kind of currency. And, while most administrations have tried to crack down on leaks, they have almost always shied away from going after those who receive them--until now. At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect--not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it.
The potential chilling effect the Rosen and Weissman prosecution may have on the press, government watchdog groups, and lobbyists has brought the two former AIPAC officials plenty of allies. Kate Martin, director of the Center for National Security Studies, a civil liberties group, says, "The truly unprecedented and shocking point of this prosecution is that the government claims that the effort to obtain information for publication is itself a crime." And Steve Aftergood, an intelligence expert at the Federation of American Scientists, notes that "very few people outside of government will ever get their hands on classified documents. But everyone who reads the newspaper is in possession of classified information."
And, arguably, the ability of the press to seek out and publish classified information is more important now than ever before. Last year, the National Archives Information Security Oversight Office, which tracks the proliferation of classified information, said that government agencies reported 15,645,237 decisions to classify material, a 10 percent increase from the year before. It's hard to believe that the Justice Department or the FBI can or should protect that many secrets.
Lake draws out the full implications of this policy here.